After two days of broad analysis of a draft document on traditional knowledge, country experts were to convene today in small drafting groups to trim down the language and arrive at a treaty negotiating text for the delegates meeting at the World Intellectual Property Organization in May.
 
The Second Intersessional Working Group (IWG 2) of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting from 21-25 February. It is gathering country experts with the charge of drafting a negotiating document for the next session (the 18th) of the IGC from 9-13 May.
 
The First Intersessional Working Group (IWG 1) of the IGC worked on traditional cultural expressions in July and produced a negotiating text that will be presented to the next IGC. The Third Interssessional Working Group (IWG 3) of the IGC will meet from 28 Feb-4 March and will focus on genetic resources.
 
Two days into the week-long meeting, Ian Heath, a consultant from Australia who is chair of the IWG 2, divided the work between six drafting groups, each with a set of articles from the draft document prepared by the WIPO secretariat, much like what was successfully carried out at the IWG 1 meeting, he told Intellectual Property Watch. On Monday and Tuesday, experts did a read-through of the draft document, without any changes in the text.
 
The 100+ page draft document prepared by WIPO [pdf] collects comments and proposals made by countries and observers from the 15th to the 17th sessions (the last three meetings, reaching back to December 2009) of the IGC and intersessional commenting processes. The text shows widely different perspective on the way to address traditional knowledge protection.
 
The first group will focus on Article 1, which deals with subject matter of protection. During the read-through of the draft document, some country experts called for a simplification of Article 1, and a separation between the scope and subject matter of traditional knowledge from the subject of eligibility criteria (IPW, WIPO, 21 February 2011).
 
The second drafting group will discuss Article 2, on the beneficiaries of protection and will also discuss transboundary issues, such as when traditional knowledge does not stay within national borders. In the draft document, which shows country positions in footnotes and comments, the United States asked that the word “protect” be added to the description of who should benefit from protection, adding that “if the knowledge was not protected within the indigenous and local communities, the international communities should not have an obligation to protect that information either.”

A representative of the Tulalip Tribes said in the draft document that some communities might “share knowledge innocently or share knowledge under their understanding with somebody that did not have the same understandings.” He asked if “it would be considered that they had not taken the steps to protect their knowledge.”
 
The third drafting group will address Article 3 on the protection against misappropriation and misuse, and Article 4, on the principle of prior informed consent, fair, direct, and equitable benefit sharing and recognition of knowledge holders. Those two areas have been characterised by the chair as the scope of protection, Heath told Intellectual Property Watch.
 
On Article 3 in the draft document, Australia said it “contained broad subjective terms and phrases such as ‘unfair means’ and ‘contrary to honest practices’ which required further considerations.” The delegation of South Africa noted in comments that “the objective of protection in this document was too limited,” and that protection against misappropriation should not be the only objective and should expand to other areas such as sustainable development and the promotion of innovation.

Some discussion also arose about the definition of misappropriation. The International Chamber of Commerce said that the concept of misappropriation “should be linked to notions of appropriate access and benefit-sharing through compliance with national ABS laws.” The Indian delegation asked that Article 3 define the rights of the traditional knowledge holder, rather than only protection against misappropriation and misuse.

On Article 4, some concerns were voiced by the representative of the Indigenous Peoples Council on Biocolonialism about non-commercial use of traditional knowledge and potential commercial use deriving from non-commercial or academic research. The delegation of India had asked that benefit sharing reflect the assessment of value of the traditional knowledge and its potential value if commercialised.
 
The fourth drafting group will address Article 6 on exceptions and limitations and the questions of the obligations on states, sanctions and remedies, which were “scattered all over the place” in the draft text, Heath said. The chair proposed to maybe add another article to deal with those subjects.
 
The fifth drafting group is in charge of Article 5 on the administration and enforcement of protection, Article 7 on the duration of protection, and Article 8 on formalities.
 
The sixth and last group will discuss Article 9 on transitional measures, Article 10 on consistency with the general legal framework, and Article 11 on international and regional protection, as well as the issue of dispute resolutions, which currently are addressed, with the same language in Article 10 and Article 4 in the draft document, Heath said.
 
The drafting groups should discuss all day today and report back to the chair later today with a set of texts that the Heath will put together as a new document, to be released sometime on Thursday. The new text should then be discussed in plenary meeting where comments will be recorded and it will be taken forward to the IGC, Heath told Intellectual Property Watch.
 
The IWG 2 has not been asked to resolve differences, Heath added, but to get a clean text with different options if a single formulation is not achieved. Observers are participating in the drafting groups, he said.  Each drafting group has a convener named by the chair who suggested a list of experts to attend each group but these groups are open so that experts can chose the ones they want to attend and navigate between them.
 
Some countries have expressed concern at the fact that with only one expert by country, they must choose between different groups. According to participants, one developing country delegate asked if other colleagues could participate in drafting groups but the chair declined.